RICHARD D. FANNING v. CONSTANTINE ALEXANDER, JANET GREEN, BRENDAN SULLIVAN, DOUGLAS MYERS, and ANDREA HICKEY, as they are Members or Associate Members of the CAMBRIDGE BOARD OF ZONING APPEAL.

MISC 14-484762

July 22, 2016

Middlesex, ss.

FOSTER, J.

DECISION

Introduction

There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

"That's some catch, that Catch-22," he observed.

"It's the best there is," Doc Daneeka agreed.

Joseph Heller, Catch-22 46 (1961) (2004 ed.).

When Richard Fanning (Fanning) sought to add an addition to his Cambridge townhouse in 2010, he erroneously believed that he needed a variance on the grounds that his townhouse did not conform to setback requirements. He was mistaken; both his townhouse and his proposed addition fully conformed to the Cambridge Zoning Ordinance (CZO). Nevertheless, the Cambridge Board of Zoning Appeal (BZA) issued the variance, and he built the addition. In 2013, he sought to add an exterior staircase to the side of the addition in order to make it a fully separate living unit. Since a second parking space was required in order to have a new dwelling unit, he also sought a special permit to install a second driveway and a variance to add a parking space in his front yard.

He applied for a building permit for the exterior staircase. Although the exterior staircase also fully complied with the CZO, the Cambridge Inspectional Services Department (ISD) told him that he needed a further variance because the complying staircase was a change from the plans approved in the unnecessary 2010 variance. He applied, and the BZA denied his variance.

As for his variance for a front yard parking space, although his application was unopposed, the BZA told him that it preferred that he seek a special permit to waive the off-street parking requirement and allow him to park on the street. When he applied for the special permit parking waiver the BZA denied his application in the face of opposition from three of his 53 neighbors and despite his compliant parking analysis. Fanning has appealed from the decision that denied both his variance application for the second dwelling unit and staircase and his special permit application permitting on-street parking, and his appeal was tried.

Catch-22 does not appear in the Cambridge Zoning Ordinance, and the Board of Zoning Appeal and ISD are not free to read it in. Their whipsawing of Fanning to require a variance for seeking a compliant staircase simply on the ground that it was a change from the unnecessary variance for a compliant addition was arbitrary and capricious. Their denial of a special permit that they told him to seek, especially in the face of a lack of support and reasons for the denial, is also arbitrary and capricious. The BZAs decision is thus, annulled. ISD will be ordered to issue a building permit for the staircase upon Fannings resubmission of a building permit application, and the case will be remanded to the BZA with orders to issue the special permit parking waiver.

Procedural History

The plaintiff, Richard Fanning (Fanning), filed his Complaint on July 11, 2014, appealing the BZAs denial of his applications for a variance and special permit pursuant to G. L. c. 40A, § 17. A case management conference was held on August 20, 2014, where the parties were referred to a mandatory alternative dispute resolution (ADR) screening. On September 16, 2014, the parties attended an ADR screening, but did not pursue mediation.

On January 14, 2016, a view was taken and a trial was held. Testimony was heard from Richard Fanning, Jose Luis Rojas Villarreal, and Ranjit Singanayagam. Exhibits 1 through 10 admitted. At the close of Fannings presentation of his evidence, the BZA filed a Motion for Dismissal of the Defendants under Mass. R. Civ. P. Rule 41(b)(2). The court denied the Motion without prejudice. On March 7, 2016, the BZA filed a Defendants Requests for Rulings of Law and Findings of Fact, and a Renewed Mass. R. Civ. P. Rule 41(b)(2) Motion for Dismissal of Plaintiff Richard D. Fannings Complaint against the Defendants. The same day, Fanning filed Plaintiffs Trial Memorandum. The court heard the Renewed Mass. R. Civ. P. Rule 41(b)(2) Motion for Dismissal of Plaintiff Richard D. Fannings Complaint against the Defendants and closing arguments on March 11, 2016, and took the case and motion under advisement. This decision follows.

Findings of Fact

Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact:

1. Since 1987, Fanning has owned and occupied a 6,248 square foot lot located at 21 Cornelius Way in Cambridge (the Fanning Property). The Fanning Property is improved by an attached single family townhouse. The existing townhouse on the Fanning Property is two and half stories tall with an attached deck. Exh. 1, ¶¶ 1-2, 4.

2. The Fanning Property is located in the Linden Park townhouse subdivision (Linden Park), a planned unit development (PUD) constructed in the mid-1980s, containing a total of 54 single-family townhouses. Fanning was the project architect for Linden Park. The Fanning Property is an end lot in the subdivision, abutting railroad tracks on its eastern boundary and vacant land on its southern boundary. With over 6,000 square feet, the Fanning Property is the largest lot in Linden Park. There is only one off street parking space at the Fanning Property. Exh. 1, ¶¶ 1, 3-4, 10; Tr. 19-21.

3. All of Linden Park, including the Fanning Property, is located in zoning district C-1 under the CZO. Section 5.31 of the CZO states that in order to have more than one dwelling unit on a lot in a C-1 district, the lot must have a minimum area of 5,000 square feet. The Fanning Property, with over 6,000 square feet, is the only lot in Linden Park that can satisfy this requirement to support two dwelling units. Exh. 2, at § 5.31; Tr. 20-21.

4. Around December 2010, Fanning wanted to increase the size of his townhouse by adding on additional living space for his sister and to accommodate for his model-making/woodworking hobby (the Addition). Although all the dimensional requirements of his existing townhouse complied with the CZO, including the zero side-yard setback that was compliant under the townhouse ordinance when the Linden Park development was built, Fanning was told he needed to apply for a variance for the Addition. He filed an application with the BZA seeking a variance to extend the east side of the single family home on the Fanning Property (the 2010 variance). The proposed Addition was to extend toward the railroad tracks and away from neighbors. The plans for the proposed addition satisfied all the zoning requirements for a complying addition. Exh. 1, ¶ 5; Exhs. 8-10; Tr. 22- 23, 86-89.

5. A hearing on the variance application was held on January 27, 2011. At the hearing, Fanning introduced a statement in support for his proposal signed by twenty-seven of his neighbors. No one appeared in opposition. Exh. 1, ¶¶ 5-6; Exh. 8; Tr. 22, 26-27.

6. On March 2, 2011, the BZA granted Fanning the variance for the Addition, finding that the proposal was modest in nature and had unanimous community support. The Chair of the BZA abstained from voting, not because he opposed it, but because he thought the variance was unnecessary and the requested relief should have required a special permit at most under Section 8.22 of the CZO. Nevertheless, the project was permitted to proceed with the condition it proceed in accordance with the plans submitted by [Fanning] and initialed by the Chair. In granting this variance, the BZA did not state that any additional variances in connection with building the Addition would be necessary. Subsequently, Fanning built the Addition and received an occupancy permit. Exh. 1, ¶ 7; Exhs. 9-10.

7. In 2012, after his sister was unable to move in with him, Fanning decided to convert the already built and approved Addition into a second dwelling unit to generate additional income. This would entail adding a kitchen, creating a second egress, and providing a second off-street parking space. Tr. 21-23.

8. Around March, 2013, Fanning filed an application with the BZA requesting a special permit to install a second driveway and a variance to permit front yard parking in the front yard setback. All other townhouses in Linden Park have front yard parking. Exh. 1, ¶ 8; Exh. 6; Tr. 24-25.

9. A hearing on the special permit and variance was held on April 25, 2013. On June 12, 2013, the BZA denied Fannings requests for zoning relief, stating that upon all the information presented, there were not circumstances involving a substantial hardship relating to his property within the meaning of G. L. c. 40A, § 10. The BZA also found that desirable relief could not be granted without substantial detriment to the public good. They stated it was the policy of the BZA to discourage front yard parking and suggested that Fanning apply for a special permit parking waiver, requesting relief from the requirement that he provide a second off-street parking space. Fanning did not appeal the denial of the special permit and variance. Exh. 1, ¶ 8; Exh. 7; Tr. 25-28.

10. In December 2013, Fanning filed a building permit application with ISD to construct the second egress exterior stairway. Fanning expected his application for the stairway to be approved since it met the zoning requirements in Section 5.24.2 of the CZO, and wooden fire escapes are permitted in the Commonwealth, so long as they are installed in accordance with the State Building Code. Exh. 5; Tr. 33-38, 69-70, 87-88.

11. Fannings building permit application for the staircase was not acted on by ISDs building inspectorit was neither granted nor denied. Fanning was told by the building inspector that he would not act on the building permit until Fanning obtained a variance to authorize the exterior staircase since the Addition to which the stairs would lead had been the subject of a prior variance. Fanning did not appeal the inaction of the building inspector to the State Building Code Appeals Board. Thinking that there were no objections and the building permit would be forthcoming, Fanning began constructing the staircase, but it was never completed. Exh. 5; Tr. 38-41, 72-73, 78-79.

12. On April 2, 2014, Fanning filed an application with the BZA seeking a variance in order to add a second dwelling unit within his single family residence at the Fanning Property and to add an exterior staircase as a second means of egress for the proposed second dwelling unit (the 2014 variance). Fanning also sought a special permit to reduce the required parking for the proposed second dwelling
unit by one space, so that no additional parking spaces would be required on the Fanning Property. Exh. 1, ¶ 9; Exh. 3.

13. Section 5.24.1 states that [o]pen lattice or enclosed fire escapes for emergency use are only permitted to encroach on yard areas. Section 5.24.2 provides that open fire escapes and like projections which do not project more than [3 ½] feet and which are part of a building not more than [35] feet in height are allowed and may extend beyond the minimum yard regulations otherwise provided for the district in which the structure is built. Fannings proposed staircase is less than 3 ½ feet wide, is part of the townhouse which is less than 35 high, and is located in the left side yard which exceeds the minimum setback requirements. Exh. 2, at §§ 5.24.1, 5.24.2.

14. Section 5.26 of the CZO states that no new dwelling units created by the conversion of an existing dwelling into a greater number of units is permitted unless it meets the requirements for minimum lot area for each dwelling unit, maximum ratio of floor area to lot area, minimum ratio of private open space to lot area, and off street parking for all dwelling units after the conversion. Section 5.31 is a table of dimensional requirements. For a residential C-1 district, the minimum lot size is 5,000 square feet, the minimum unit size is 1,500 square feet per unit, the maximum ratio of floor area to lot area (FAR) is .75 (75%), and the minimum ratio of private open space to lot area is 30%. Exh. 2, at §§ 5.26, 5.31.

15. Section 6.36.1 requires one parking space per dwelling unit. Section 6.35 of the CZO provides that any minimum required amount of parking can be reduced by special permit upon the Boards determination, based on cited evidence, that the lesser amount of parking will not cause excessive congestion, endanger public safety, substantially reduce parking availability for other uses or otherwise adversely impact the neighborhood, or that such lesser amount of parking will provide positive environmental or other benefits to the users of the lot and the neighborhood, including specifically, assisting in the provision of affordable housing units. The BZA must also consider other factors such as proximity to public transportation, the availability of public or commercial parking facilities, age or other occupancy restrictions which are likely to result in a lower level of auto usage, and the impact of the parking requirement on the physical environment of the affected lot or the adjacent lots. For a project seeking a reduction in required off-street parking for residential uses, a Parking Analysis shall be required as part of the Special Permit Application as set forth in Section 6.35.3. Exh. 2, at §§ 6.35, 6.35.1, 6.36.1.

16. Section 11.16 of the CZO provides that townhouse developments are subject to the parking requirements of Article 6, except as modified below. Section 11.16.2(4) of the CZO specifies that parking spaces for townhouse developments may be located [o]n street in the vicinity of the townhouses if the special permit granting authority determines that the lack of off street parking for the townhouse development will not unreasonably reduce the quantity of on street parking in the area. Applicants for an exception from off street parking shall submit a report on parking usage and availability in the vicinity of the development with their permit application. Exh. 2, at § 11.16.

17. Pursuant to § 10.43 of the CZO, special permits will generally be granted where specific provisions of the CZO are satisfied, except where particulars of the location or use, not generally true of the district or of the uses permitted in it, would cause granting of such permit to be to the detriment of the public interest because:

a. It appears that requirements of this Ordinance cannot or will not be met, or

b. traffic generated or patterns of access or egress would cause congestion, hazard, or substantial change in the established neighborhood character, or

c. the continued operation of or the development of adjacent uses as permitted in the Zoning Ordinance would be adversely affected by the nature of the proposed use, or

d. nuisance or hazard would be created to the detriment of the health, safety and/or welfare of the occupant of the proposed use or the citizens of the City, or

e. for other reasons, the proposed use would impair the integrity of the district or adjoining district, or otherwise derogate from the intent and purpose of this Ordinance, and

f. the new use or building construction is inconsistent with the Urban Design Objectives set forth in Section 19.30.

Exh. 2, at § 10.43.

18. A hearing on the 2014 variance and special permit regarding the second dwelling unit was held on May 8, 2014. At the hearing Fanning stated that in order to create a second unit in the single family townhouse, a waiving of the second required parking space and the installation of the staircase as the second means of egress from the new unit were necessary. He further indicated that there existed ample street parking, easy access to public transportation, and other parking lots/garages in the area. He expressed that the second dwelling unit would be small and the tenant would most likely not drive a car. Several neighbors also spoke and/or wrote in opposition to Fannings proposal, based largely on parking concerns resulting from the waiver. Exhs. 3-4.

19. In a decision filed with the City Clerk on June 23, 2014, the BZA denied Fannings requests for zoning relief (Decision). The BZA relied on the testimony of neighbors that there would be parking issues and found that Fanning had not demonstrated that reducing the number of parking spaces would not substantially reduce parking availability for other uses. To support its Decision denying the special permit, the BZA stated that they failed to make the following findings:

(1) The meeting of the requirements of the Ordinance;

(2) Traffic generated or patterns of access or egress would not cause congestion, hazard, or substantial change in the established neighborhood character;

(3) The continued operation of or the development of adjacent uses as permitted in the Ordinance would not be adversely affected by the nature of the proposed uses;

(4) Nuisance or hazard would not be created to the detriment of the health, safety and/or welfare of the occupants of the proposed use;

(5) The proposed use would not impair the integrity of the district or adjoining district or otherwise derogate from the Ordinance, and in fact would be a significant improvement to the structure and benefit the neighborhood, and;

(6) The new use or building construction is not inconsistent with the Urban Design Objectives set forth in Section 19.30 of the Cambridge Zoning Ordinance.

As to the variance, the BZA also found that there were not circumstances involving a substantial hardship relating to the Fanning Property within the meaning of G. L. c. 40A, § 10, and that desirable relief could not be granted without substantial detriment to the public good. Exh. 1, ¶ 9; Exhs. 2-4.

20. On July 11, 2014, Fanning appealed the Decision to this court pursuant to G. L. c. 40A, § 17.

Discussion

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require. G.L. c. 40A, § 17. Section 17 review of a local boards decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must review the factual record without deference to the board's findings). After finding the facts de novo, the courts function on appeal is to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law. Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local boards decision and may only overturn a decision if "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In determining whether the decision is based on legally untenable ground, the court first looks at whether it was decided on a standard, criterion or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives some measure of deference to the local boards interpretation of its own zoning by-laws. Once the court determines the content and meaning of statutes and by-laws, it looks at whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application. Britton, 59 Mass. App. Ct. at 73. Finally, the court finds the facts and determines whether any rational board could come to the same conclusion. Id. at 74. This step is highly deferential, but deference is not abdication. Id. As a consequence, the boards discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the boards conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law. Id. at 74-75. If the boards decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).

Fanning appeals the Decision denying his request for a variance, to add a second dwelling unit within his single family townhouse and an open exterior staircase as the second means of egress, and his request for a special permit parking waiver. He argues that his house was a conforming structure and that he should not have been required to get a variance to build the second staircase, but should have been able to receive a building permit and build as of right without zoning relief from the BZA. Fanning also contends that he adequately demonstrated, through his parking analysis submitted with his special permit application, that the parking waiver would not impact parking availability and there was sufficient parking in the vicinity. Additionally, Fanning appeals the building inspectors inaction on his building permit application for the exterior staircase.

The BZA argues that Fanning waived his right to challenge the non-issuance of the building permit by failing to exhaust his administrative remedies and timely appeal the inaction within forty-five days to the State Building Code Appeals Board. Absent such appeal, they argue, this Court is without jurisdiction to hear a request for relief with respect to the non-issuance of the building permit. Further, the BZA asserts that Fanning failed to preserve a claim that the staircase does not require zoning relief by not explicitly reserving such a claim in his application for the variance. On the merits of Fannings appeal, the BZA argues that the Decision properly denied both the variance and the special permit. The BZA maintains that it correctly determined that Fanning suffered no substantial hardship warranting the variance for the second dwelling unit and exterior staircase. They also claim that Fanning, in seeking the special permit parking waiver, failed to demonstrate that the lesser amount of available off-street parking for the Fanning Property would not cause excessive congestion, endanger public safety, or substantially reduce parking availability.

As set forth more fully below, I find that the BZAs Decision had no substantial basis in fact and was arbitrary and capricious, and is hereby annulled. I discuss the portions of the Decision denying the variance request and the special permit request in turn.

I. The Variance

The variance requirement for the second dwelling unit and exterior staircase was predicated on the 2010 variance granted for the Addition and the conditions stated therein. One of those conditions was that the project proceed in accordance with the plans submitted by [Fanning] and initialed by the Chair. The BZA interprets this condition as meaning that any alterations or additions to the plans submitted and approved by the Chair would require supplemental variances. Because the variance request and the BZAs reasons for denying the request in the Decision are so closely tied to the condition in the original variance, it is appropriate to address the necessity of the 2010 variance for the Addition.

Fanning argues that he should never have been required to obtain a variance for the Addition because both his house and the Addition were conforming structures under the CZO. He is correct. Section 5.26 of the CZO states that any new dwelling units created by the conversion of an existing dwelling into a greater number of units are permitted so long as they meet the requirements for minimum lot area for each dwelling unit, maximum ratio of floor area to lot area, minimum ratio of private open space to lot area, and off street parking for all dwelling units after the conversion. Section 5.31 is a table of dimensional requirements. For a residential C-1 district, the minimum lot size is 5,000 square feet and 1,500 square feet for each unit. The maximum FAR is .75 (75%), and the minimum ratio of private open space to lot area is .3 (30%). Section 6.36.1 requires one parking space per dwelling unit.

When Fanning applied for the 2010 variance, the existing townhouse met or exceeded the lot area, unit floor area, FAR, usable open space, and height requirements under the CZO. The BZAs decision granting the variance stated that Fanning sought a variance because the Addition exceeded 25% of the FAR. This was incorrect; the CZO allows for a maximum of 75% of the FAR. Exh. 2, §5.31. Including the addition, Fannings requested FAR only amounted to 42% of the FAR, which did not exceed the CZOs 75% limit. The front, rear, and left side setbacks were all well above the minimum requirements as well. Because Fannings townhouse shares a wall with the adjoining townhouse along the right side boundary line, there was a right side setback of 0 feet, which did not conform to the requirements of § 5.31. The building inspector for the Cambridge ISD, Ranjit Singanayagam (Singanayagam), testified, however, that all the townhouses in Linden Park are conforming structures because they were built pursuant to §§ 11.10-11.17 of the CZO, the so-called townhouse provision, which permits attached dwellings, thus creating a conforming 0-foot side yard setback. Exh. 2, §§5.31.3(c), 11.10-11.17; Tr. 88-89. In other words, Fannings townhouse, with a 0-foot setback, conformed with the CZO. When filling out his variance application, Fanning mistakenly requested 24 feet for the right side setback, the distance from the new wall of the Addition to the shared wall between the adjoining townhouses, instead of 0 feet.

Whether it was Fannings error in stating that the Addition exceeded 25% of the FAR or in writing 24 feet rather than 0 feet for the right side setback, the BZA apparently assumed that a variance was necessary and issued a decision based on that assumption. In
reaching its decision, the BZA found that the proposed Addition would be a conforming addition to a nonconforming structure. Exh. 9. This was incorrect. As discussed above, the original townhouse was a conforming structure. At trial, Singanayagam testified that if an existing dwelling and a proposed addition are both conforming, it is the general practice for the Cambridge ISD to issue a building permit without the need for further zoning relief under the CZO for nonconforming buildings. Tr. 81-82. He stated that the only reason the 2014 variance for the exterior stairs was necessary was because it was a change to the plans for the Addition approved in the 2010 variance. Tr. 70-71. Since the plans approved for the Addition, when the 2010 variance was granted, did not show a second dwelling unit or an exterior staircase, Singanayagam decided that Fanning needed additional zoning relief from the BZA before he would act on the building permit application. Tr. 72-73, 76-77.

While the BZA does not dispute that the existing house and the Addition were conforming, they assert that Fanning waived his right to argue that zoning relief was not required because he failed to reserve such an objection when he applied for the 2014 variance. Because he did not reserve his objection, they contend that Fanning is bound by the condition set forth in the 2010 variance, which they interpret as requiring him to seek further zoning relief for changes made to the plans approved by the Chair. To support their argument that Fanning was required to reserve his right to challenge the necessity of zoning relief, the BZA cites only the case of Sisters of the Holy Cross of Massachusetts v. Town of Brookline, 347 Mass. 486 (1964).

In Sisters of the Holy Cross, Holy Cross sought a declaration that its land in Brookline was not subject to the local bylaw since it was an exempt use under G. L. c. 40A, § 2, the Dover Amendment, and it was entitled to a permit for the construction of a multipurpose college building. Holy Cross had previously applied for a variance and special permit for the same project, which were both denied by the board of appeals and Holy Cross appealed the denial. Id. at 488-489. Intervening abutters argued that by submitting itself to the jurisdiction of the town and board of appeals in seeking the variance and special permit, Holy Cross had waived any exemption it might have had under the Dover Amendment. Id. at 494. Ultimately, the Supreme Judicial Court found that because Holy Cross had a pending suit for declaratory relief on the application of the Dover Amendment, it demonstrated that although it requested a variance and special permit, [Holy Cross] did not intend to abandon its rights under G. L. c. 40A, § 2, in the event a variance and a special permit were denied. Id. at 495. Further, in seeking a variance from the board of appeals, Holy Cross had expressly stated in its application that it does not waive rights it may have under G. L. c. 40A, § 2. In reaching its decision, the court noted that waiver of a statutory right in proceedings before an administrative board will not be easily inferred as a matter of law. Id.

The BZAs reliance on Sisters of the Holy Cross is misplaced. In Sisters of the Holy Cross, the SJC did not hold that parties seeking to challenge the necessity of obtaining zoning relief must explicitly reserve such rights. Indeed, the SJC stated that waiver of a statutory right before an administrative board will not be easily inferred as a matter of law. Id. (emphasis added). Rather, the decision merely noted that Holy Crosss express statement of reservation buttressed the position that they did not intend to waive their rights under the Dover Amendment, which was supported by their action in filing the suit for declaratory relief. Unlike Sisters of the Holy Cross, the present case does not implicate a statutory right under the Dover Amendment, but rather ones ability to build as-of-right under the local ordinance and whether such party can be held to the conditions of a variance that was unnecessary. I find the position of the BZA, that one must explicitly preserve a claim that the use or structure in question does not require zoning relief, irrational and at odds with the underlying purpose for the existence of variances.

Variances are, by nature, individual waivers of local legislation that permit nonconformity. Cornell v. Board of Appeals of Dracut, 72 Mass. App. Ct. 390 , 392 (2008). They are always in derogation of the zoning system adopted by the town under its lawful powers. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557 (1954). Variances exist to allow flexibility in zoning administration and to enable a local board to consider the particulars of a given property and project distinct from the zoning district in which it is located, authorizing them discretionary power, after hearing from all affected, to make decisions on a case-by-case basis. Id. Within the stringent statutory requirements of the Zoning Enabling Act, variances are not allowed as a matter of right, and should be sparingly granted. Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 194 (2005), quoting Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 531 (1990).

In other words, variances should not be issued if they are not necessary, and the construction of conforming structures and additions should not be subject to a variance. What Fanning proposed in his 2010 variance application was a conforming addition to his conforming townhouse. This is not the situation in which a variance is warranted. The building inspector testified that both the Addition and the existing dwelling were conforming when the 2010 variance was granted. If the building inspector or the BZA had sufficiently reviewed Fannings application, the correct determination would have been made that no zoning relief was required and the building permits for the Addition, and later for the exterior stairs, would have been issued. There is no question that Fanning had and still has a right to a building permit for the second dwelling unit and staircase without having to go through the BZA for a variance.

In spite of this logic, the BZA continues to rely on the condition in the 2010 variance that the project proceed according to the approved plans to support its claim that any changes to the plans would require an additional variance. See DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 346-347 (1985) (When a variance is granted for a project as shown by . . . plans that on their face give no indication that they are preliminary plans, the variance requires strict compliance with the plans.). Because the second dwelling unit and the stairs were not asked for in the original (unneeded) variance application, they were not part of the plans approved by the BZA. Thus, the BZA argues that separate approval for the stairs was necessary.

This is not the purpose of this condition. The reason for requiring approval of plans as a condition to a variance is to prevent applicants from getting approval for a specific design and then building something different while still meeting the approved dimensional variances. That is not the situation when the owner is seeking to make conforming changes to his property well after the initial construction is completed and complied with the approved plans, especially when the original variance was unnecessary. The townhouse in 2010 was not a nonconforming structure, and no variance was necessary. The notion that a property owner cannot make a conforming change to their property because it has been the subject of a prior unnecessary variance is not one recognized by the Zoning Act nor the CZO. Fanning should not be held to conditions set forth in the previous variance that were based on erroneous information that his townhouse was nonconforming, nor should he be precluded from claiming that zoning relief is not required simply because he didnt expressly reserve that claim.

But for the BZAs blind reliance on the 2010 variance and its conditions, a variance for the second dwelling unit would not have been necessary. The Addition, in which the proposed second dwelling unit will be located, is already built and is conforming. Exterior stairs are allowed on a side yard under § 5.24 if the side yard meets the minimum setback requirements. The BZA knew from the 2014 variance application that the proposed staircase is on the left side of Fannings townhouse, which exceeds the minimum required side yard setback, faces railroad tracks, and is already screened by a fence and is thus functionally invisible to any other neighbor. If the BZA had looked outside its earlier decision, and separately assessed the necessity of a variance in this case, they would have easily determined that the second dwelling unit and the staircase were conforming and that their construction was permitted as-of-right, requiring no further zoning relief.

The building inspector and the BZA got this case wrong from the beginning. The BZAs actions in this case placed Fanning in a Catch  22: the BZA required a variance for his conforming second dwelling unit and staircase; but for Fanning to get a variance the second dwelling unit and staircase needed to be nonconforming. Under these circumstances, it is clear that no rational board could have come to this conclusion. Because the requirement for the 2014 variance was grounded on the granting of the 2010 variance, which I find to have been unnecessary, Fanning was not obligated to obtain a variance for the conforming second dwelling unit and exterior stairs prior to the approval of a building permit.

Judgment shall enter annulling the BZAs Decision denying the variance. Fanning may reapply for a building permit for the second dwelling unit and exterior stairs, which the building inspector is ordered to grant without requiring additional zoning relief. Because I find that Fanning may reapply for a building permit, I need not address the timeliness of Fannings appeal of the non-issuance of his December 2013 building permit application or the BZAs claim that he failed to exhaust his administrative remedies.

II. The Special Permit

General Laws c. 40A, § 9, authorizes municipalities to provide by local legislation that certain uses, though not permitted as of right, may nevertheless take place within a specified district upon issuance of a special permit. The special permit granting authority exercises its discretion in issuing special permits. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use. G. L. c. 40A, § 9. The burden of proof is on the party seeking the special permit to show that the granting of a special permit is justified. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977).

Here, Fanning applied for a special permit requesting a waiver from the parking regulations. Under § 6.36 of the CZO, one parking space is required per dwelling unit in a C-1 zoning district. Since Fanning had already been denied a variance and special permit for a second driveway on his front yard, a parking waiver was necessary in order to have his proposed second dwelling unit. Section 6.35.1, the provision dealing with off street parking generally, specifies that any minimum required amount of parking can be reduced by special permit upon the BZAs determination based on evidence and several factors, more specifically discussed in the facts above. Section 11.16.1 of the CZO, the section particularly addressing townhouse developments, provides that one off street parking space per dwelling unit in a townhouse development shall be provided unless a special permit is granted in accordance with Section 11.16.2(4). Both § 6.35.3 and § 11.16.2(4) require applicants seeking a special permit parking waiver to provide a parking assessment with their application. Section 6.35.3 of the CZO requires a Parking Analysis and states that [w]here a Parking Analysis is specifically required by any provision of [the CZO], the proponent shall first consult with the Traffic, Parking and Transportation Department to determine the scope and methodology of such an analysis. Section 11.16.2(4) only requires applicants seeking an exception from off street parking to submit a report on parking usage and availability in the vicinity of the development with their permit application.

Pursuant to § 10.43 of the CZO, special permits will generally be granted where specific provisions of the CZO are satisfied, except where particulars of the location or use, not generally true of the district or of the uses permitted in it, would cause granting of such permit to be to the detriment of the public interest. Even if the record reveals that a desired special permit could lawfully be granted by the board because the applicants evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit, so long as that denial is not based on a legally untenable or arbitrary and capricious ground. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001) (internal citations omitted).

Fanning argues that the denial of the special permit parking waiver was arbitrary and capricious. He contends the BZA subjected him to another Catch-22 by first denying his unopposed application for a special permit to install a second driveway and variance to permit front yard parking in the front yard setback because they had a policy against front yard parking, suggesting that Fanning seek a special permit to waive the parking requirements, and then denying that special permit in the Decision. Despite the Decision, Fanning asserts that both his application and testimony at the hearing provide sufficient support that there is adequate available parking in the vicinity, including several commercial parking lots, to accommodate one additional car without causing congestion hazards.

Conversely, the BZA argues that Fanning failed to meet his burden of demonstrating that the special permit was justified. The BZA states that it denied Fannings application on the ground that Fanning had not demonstrated that reducing the number of his required parking spaces would not substantially reduce parking availability for other uses, and further, that he failed to support his claim that his prospective tenant could park in nearby commercial parking lots. Additionally, they state that Fanning did not submit a Parking Analysis done by a traffic engineer, or other professional in the field of traffic and parking, with his special permit application as required by § 6.35.3 of the CZO.

To begin with, Fanning was not obligated to provide a Parking Analysis under § 6.35. He was only required to submit a parking report pursuant to § 11.16.2(4). Section 11.16.2 is the specific provision dealing with parking in townhouse developments, while § 6.35 is a more general section that applies to any use seeking a reduction in the required parking. Interpreting the CZO according to familiar rules of statutory construction, the more specific bylaw provision controls over the more general. Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710 , 713 (2013), citing Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126 , 131-132 (2013); see Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012).

Section 11.16.2(4) does not require applicants seeking an exception from off street parking to consult with the Traffic, Parking and Transportation Department, but only requires that they submit a report on parking usage and availability in the vicinity of the development with their permit application. In Fannings application, he attached a document entitled Supporting Statement for Special Permit, in which he includes a Parking Analysis section. In discussing why he was entitled to the special permit, Fanning states that there is plenty of surplus off street parking in the vicinity and lists several commercial parking lots and nearby streets. He notes that his property is near the Red Line Kendell/MIT MBTA station and MBTA bus lines. Fanning reasoned that since the second unit is small, his proposed tenants would likely be single, young students, who would not likely own a car. He pledged that he would take steps to seek tenants who do not own vehicles or are willing to park in one of the nearby lots. Exh. 3.

In his application, Fanning specifically addressed each of the special permit criteria and why he was entitled to a special permit under § 10.43. He stated that he could not meet the requirements of the CZO for a second parking space because the only available parking area, on the front of his lot, did not have sufficient space for additional parking and he was already denied a variance and special permit for a second driveway in that location. Because the Fanning Property is an end lot in Linden Park, abutting the railroad track, he maintained there would be little traffic and no congestion would be created as a result of one additional vehicle. Fanning indicated that he did not believe one additional dwelling unit to the 54 existing townhouses in Linden Park would adversely affect the subdivision. He also stated that the second dwelling unit would be code compliant, no nuisance or hazard would result in detriment to the occupants or neighbors, the additional unit is consistent with the entire present use of the residential subdivision, and it is consistent with the Urban Design Objections in Section 19.30 of the CZO.

The Parking Analysis in his special permit application, supplemented further with his testimony at the hearing and at trial, is sufficient to satisfy the parking report requirement under § 11.16.2(4). He provided ample information to the BZA describing why he needed the parking waiver and why the waiver would not adversely impact the neighborhood. While only three neighbors of the 54 townhouses appeared to oppose the waiver, the BZA found that there was extensive commentary from people in the neighborhood who had testified that there would be parking issues. Exh. 4. Though the BZA held that Fanning had not demonstrated that reducing the number of parking spaces would not substantially reduce parking availability for other uses, the record shows that Fanning did support this claim. In the Parking Analysis in his special permit application Fanning discusses how his tenant will likely not even own a car, and if the tenant does, he listed several surrounding parking lots or garages that they can pay to park in. Aside from this limited reasoning, the BZA simply parroted the six criteria under § 10.43 saying that Fanning had not met any of them. The specific findings necessary to satisfy the
requirements under G. L. c. 40, § 15 are not met by a boards mere repetition of the statutory words. Shoppers World, Inc. v. Beacon Terrace Realty, Inc., 353 Mass. 63 , 67 (1967). When a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, we are constrained to conclude that the decision is unreasonable, whimsical, capricious or arbitrary, and therefore invalid. Wendys Old Fashioned Hamburgers of New York, Inc., 454 Mass. at 386, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999).

Moreover, the denial of the special permit was illogical given that anyone with a vehicle registered in Cambridge can obtain a resident parking sticker and park on Cornelius Way at will, with no additional approval. On-street parking is not limited solely to residences of Linden Park, but everyone who lives in Linden Park certainly has a right to park their car on the street with a city parking sticker. Because the Addition was already approved and constructed, Fanning testified that a second person residing with him in the Addition could, hypothetically, simply obtain a Cambridge resident parking sticker and park on the street. While Fanning would not be able to have a second dwelling unit, the alleged parking issues neighbors were so concerned about would still be present. Tr. 28-31, 45-46.

The BZAs earlier action in denying his special permit and a variance for the second driveway provides additional justification that the denial of the parking waiver was unfounded. The BZA claims that the prior denial of the special permit to install a second driveway and a variance to permit front yard parking in the front yard setback was because it had a policy against front yard parking. Exh. 7. This is unreasonable despite the fact that all 54 townhouses in Linden Park have front yard driveways and no neighbors opposed Fannings request. Tr. 24-26; Exhs. 6-7. In fact, Fannings direct abutter, Jose Villarreal, attended the hearing and spoke in favor of the variance for front yard parking. Tr. 57-61. Thereafter, the BZA denied both applications and suggested that Fanning seek a special permit parking waiver instead. Tr. 27-28. When Fanning took the BZA at its suggestion, he was met for the first time with opposition from a few neighbors, primarily opposed to the addition of another car on Cornelius Way, which Fanning had tried to avoid when he previously sought the special permit to construct the second driveway. Tr. 54-55. In reliance on this less than extensive opposition of neighbors, the BZA denied the parking waiver. As with the 2014 variance, the BZA placed Fanning in an impossible situationa Catch-22in which he had no mechanism to obtain the relief he needed.

I find that the BZAs Decision denying the special permit was arbitrary and capricious. No rational view of the facts supports the BZAs conclusion that Fanning failed to meet one or more of the relevant criteria to obtain a special permit parking waiver pursuant to the CZO. Therefore, judgment will enter annulling the BZAs Decision denying the special permit. This matter will be remanded to the BZA to issue the special permit parking waiver consistent with this decision.

Conclusion

For the foregoing reasons, the BZAs decision denying the variance and special permit is annulled. This matter is remanded to the BZA to issue the special permit. Fanning may reapply for a building permit for the second dwelling unit and exterior stairs, which the building inspector is ordered to grant without requiring additional zoning relief under the CZO.